High court to Joe: No

Navajo Nation Supreme Court rules Shirley cannot run again until 2014

By Jason Begay
Navajo Times

WINDOW ROCK, July 9, 2010

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The Navajo Nation Supreme Court was very cautious when it ruled on Friday that President Joe Shirley Jr. could not run for a third consecutive term as the tribe's elected leader.

Specifically, the court made sure to note the Navajo Nation Code prohibits any person to serve as president for three consecutive terms, meaning three terms in a row. The door is open for Shirley to run again for president in the 2014 election.

"We use the word 'consecutive,'" said Chief Justice Herb Yazzie, making a public comment following the announcement of the court's decision. "This is not a lifetime ban."

The high court deliberated for about 20 minutes before announcing its decision to a room of about 100 at the Navajo Nation Museum. The ruling affirms the decision of the Office of Hearings and Appeals and the actions of the Navajo Election Administration, which disqualified Shirley's candidacy in May.

The court is expected to issue a full opinion in the coming week.

The decision frees the Navajo Election Administration - which has been waiting for a resolution to the case before printing ballots - to move forward with 2010 election preparation. Edison Wauneka, NEA director, said the office is expected to send out absentee ballots July 19.

"Now that we don't have to wait for anything, we can get the ballots printed," Wauneka said.

All parties involved expedited the case in an effort not to disturb the 2010 election process, which is already gearing to be a historic and controversial event for the Navajo Nation. This will be the first time the tribe will elect a 24-member council, following a successful voter initiative that Shirley spent much of his second term championing.

Shirley betrayed little emotion following the court's ruling.

"I'm certainly disappointed," he said. "But the court has spoken and I don't believe anything can be done about it. As a citizen of the Navajo Nation, I have to respect the decision."

The entire proceeding lasted less than two hours Friday morning. David Jordan, the Gallup attorney representing Shirley, portrayed his client as the most qualified person to serve as president. The tribe should not disqualify the person with the most experience for the position, he said.

"The office of the Navajo Nation president belongs to the people," Jordan said in his argument. "All we ask is that this particular office be restored to the people."

However, Jordan's argument was based on the belief that the tribe's term limits constituted a lifetime ban, prohibiting Shirley from running for president ever again.

Chief Justice Yazzie asked Jordan pointedly if that was his belief.

"Our interpretation is that the president may serve only two terms," Jordan said, adding that the law makes no mention of the sequence of terms. "This court is free to adapt a different interpretation."

Later, Yazzie asked the same of Michael Upshaw, the Scottsdale attorney representing the Navajo Election Administration.

"It's not a lifetime ban," Upshaw said, bluntly.

The term limits - along with the entire election code - were drafted in 1989, following the governmental crisis caused by then-Chairman Peter MacDonald Sr. who had accumulated massive political control during his three terms leading the tribe.

As a result, the council overhauled the tribe's code, creating the current three-branch government. The term limits were instated on the president to avoid a concentration of power, according to the NEA argument.

However, Jordan said the council instated the limits on only the president in an effort to keep any accumulation of political power concentrated on the legislative branch.

"The statute ensures a concentration of power within the council because it has unlimited terms," Jordan said.

Meanwhile, the council would have a "newby" president every eight years, he said.

However, Upshaw argued that the term limits are necessary for the president because it is the most powerful position on the reservation. Both legislative and judicial powers are distributed upon several people, while the president oversees most of the tribe's divisions and programs alone.

Still, the tribe could avert any concentration of power by limiting consecutive terms of any president to two, not for life, Upshaw said.

"In order to achieve that, we don't need a lifetime ban," he said. "An intervening term will fulfill (avoiding) any concentration of power."

In any case the election code constitutes a "false promise" by the council to the people and the term limits set forth within should be overturned. When the council first instated the limits, it intended the statutes to be temporary, lasting until the laws could be taken to the people to ultimately decide.

"It was never sent to the people," Jordan said. "Those were sacred words never fulfilled by the council."

Associate Justice Louise Grant asked rhetorically if Shirley was aware of the term limits, pointing out that he was a member of the council in 1989 when it approved the election code.

Jordan acknowledged Shirley's participation, but said he supported what was said to be a temporary solution that would eventually be taken to the people.

Chief Justice Yazzie asked if - considering the entire section of tribal code, which defines the Navajo Nation government was to be taken to the people - should the entire section be called into question.

"Should it all be void because of lack of fulfillment?" Yazzie asked.

Jordan said the entire section should not be thrown out, however, the court should carefully consider each challenge therein.
Although his argument was based heavily on the council's inaction to take the governmental sections of the tribal code to the people, Shirley alluded that any attempt would be fruitless.

"I think the decision as to what would happen to that have been answered today," Shirley said, before refusing to comment further.

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